eForum: IP and the Future of Copyright Westminster
Copyright: How it compares internationally and who are the winners and losers UK
Academics tend to get to talk to monochromatic audiences of peers or students and I usually find myself talking to lawyers about technology or technologists about law. So I am delighted to have the opportunity to address such a diverse group of people today, as I firmly believe a cross-disciplinary, evidence-based approach to intellectual property policy-making is essential in our modern world. So many thanks to the
My brief for this morning is to look at current
Copyright protects literary, dramatic, artistic and musical works, such as books, music, software, films, sound recordings, databases, packaging, tickets, lists of rules, advertisements. It protects the expression of an idea not the idea itself. So if I wrote an article about painting a wall blue and this had never been thought of before, the article would be protected by copyright but everyone would be free to paint their walls blue.
To make things we need resources, including intangible resources like information and ideas. Authors, inventors, blues musicians, creators of all kinds do not create things out of thin air. They use language, stories, professional skills, musical notes and chords, facts and ideas, all building on the work of earlier creators, and their own talents and experience.
To understand copyright in the
In 1885 the Berne Convention for the Protection of Literary and Artistic Works was established to encourage respect for copyright internationally. With Victor Hugo being one of the prime movers in developing the convention it arguably stems from the continental tradition of copyright deriving its legitimacy from the rights of the author, as opposed to the English copyright which was based on economic rights.
Convention (International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961) Rome
GATT/WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS signed 1994, coming into force in 1995)
- The 1996 World Intellectual Property Organisation (WIPO) Treaties
- Many EU directives since the early 1990s – the intellectual property rights enforcement directive, e-commerce directive, copyright and related rights directive, and directives on databases, software, semiconductors and copyright term harmonisation
– listed primarily to illustrate that the
Andrew Gowers published his review of
Since the mid 1990s when the World Wide Web (that part of the Internet accessible through a browser) hit the public consciousness, the copyright landscape has been undergoing an upheaval of earthquake proportions. In addition to domestic changes to copyright laws all over the world, there have been a number of international instruments like the 1996 WIPO treaties, EU directives and a number of bilateral and multilateral trade agreements which affect the shape of copyright policies. It is impossible in a short talk to cover every aspect of all of them so I’m just going to consider a couple – copyright terms and how a variety of jurisdictions deal with alleged illicit music sharing via the Internet.
There is no simple answer to the question ‘how long does copyright last for?’ It depends on a number of factors including what type of work it is, where and when it was created and/published and whether it was produced by an individual creator or by or for a commercial agent. In the
If the economic case against term extension is so strong, as Gowers concluded, are there other compelling reasons for such an extension and how can we test them?
If the move is to match the
Now aside from copyright terms, it is probably also worth thinking about different approaches to
But a Belgian court case, towards the end of 2007, has raised significant questions about this by pointing out that the EU copyright directive of 2001 states that “Member States shall ensure that rights holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”. The court ordered the
Arguably the most useful thing that ISPs can do for the music labels is to link an IP address to an individual
But the disclosure of identity is just the first step in the process of going to court or issuing a cease and desist letter. This takes time and money and is not streamlined and although
This leads us neatly on to winners and losers.
There are three main parties with a stake in the copyright pie:
- Agents (and I use the term in the economic sense here to cover all the commercial entities involved in the copyright arena e.g. music, film, software, media companies, publishers etc.)
- And the general public (or consumers)
Each of the three sets of stakeholders will have within them a massive range of different kinds of creators, businesses or consumers – all of which will have their own demands of the copyright system – but for simplicity sake I am just going to look at the three groups.
We can take a theoretical stab at how the state of the copyright system – depending on, for example term, scope, penalties, case law, enforcement – will affect each of our stakeholder groups. And we can see from the graphs that the optimum system is different for each group but for it to work the interests of all three groups must be catered for. So immediately we see the need for compromise. Strong copyright might raise economic incentives to create and commercialise, for creators and agents, but it may restrict public access and the access of creators to build on the work of earlier creators. Weak copyright lowers economic incentives for creators and agents but consumers and second generation creators have greater access and freedoms. So there always have to be trade offs for the system to work, since theoretically
Za > Zc > Zconsumers
(possibly) and we can construct a model illustrating that the “best” copyright system, at least from an economic perspective, is one where the weighted sum of the benefits to creators, agents and the public is maximised.
The problem is that there is very little empirical evidence available on copyright and intellectual property policymaking more generally. And the studies that are available are often contradictory. So for example Oberholzer and Strumpf (2004) concluded that Napster had little effect on music sales, yet
- some buy more as a result of finding bands they like,
- some get access to music that is no longer commercially available or music released under different licenses like creative commons,
- some would not otherwise get access to the music at all because they lack the disposable income and so on.
So who are the winners and losers when copyright changes?
Let’s take Commissioner McCreevy’s proposed 45 year term extension in sound recordings for example.
Clear winners are creators and agents with commercially successful works which would otherwise fall into the public domain 45 years earlier. Now only about 4% of copyright works older than 20 years are commercially available, so 96% remain locked up for another 45 years even though no one is selling them. So the public lose out, as do creators who would like to build on those works (and the 4%).
The winners are again some creators and agents whose sales are undermined by the users targeted. Losers are the public subject to constant surveillance, some agents like ISPs who bear the cost of policing the system, and the folk who get cut off from the Net – a severe sanction – possibly without due process guaranteed by human rights laws. Practical considerations might mean that for the scheme to be workable on the part of the ISPs it would have to be automated and internal to the ISPs – though in the French case the process is to be supervised by a judge and independent tribunal.
Another recent development has been the French government’s signing of a memorandum of understanding with the ISPs and the entertainment industry, to facilitate a 3 strikes rule. The idea is that people suspected of infringement get one warning, one temporary suspension of services for a second offence and then get locked out of the Net for a third offence. Japanese
The system also raises quite a few other legal questions e.g. there is a presumption of guilt not innocence. The person linked to the IP address identified as an alleged source of infringement is automatically assumed to be guilty and has the burden of proving their innocence. There are a large number of ways that people might be wrongly accused - there are a lot of reasons why the person linked to the IP address - i.e. the formal
There are a lot of questions of detail with no clear answers yet available. Will there be access to the courts for those wrongly accused? How long does the Internet ban last? Etc.
Even if we could overcome these problems, there is the legal question about whether a 3 strikes law is a proportionate response to the specific problem. According to the Promusicae v Telefonica case in the European Court of Justice (2008), the rights of the music labels to protect their copyrights must be balanced with the basic human rights of users of the Net. Having access to the Net is now a basic part of nearly everyone's life in the developed world and it relates to basic rights to
- free expression
- freedom of association
- and employment
And the European Convention on Human Rights and every other serious international charter of rights says that if a law is not proportionate it is not legal.
In other words, even with the legitimate aim of defending or protecting copyrights, the ECJ clearly instructed member state governments that they are not to endanger human rights or proportionality. Some legal commentators, most notably Professor
I will round off, then, with a call for evidence based policy making on copyright and ask you to remember that radio took 40 years to reach an audience of 15 million. TV took 15 years and the World Wide Web part of the Internet did it in 3 years. The law cannot and does not have to instantly react to changes in technology. So when it comes to regulating in this area, I tend to subscribe to London University Professor Chris Reed’s doctrine of creative inertia – watch closely to see what happens, gather robust empirical evidence on creators, agents and consumers, and legislate based on that evidence.
Thanks for your time and attention.
 There were earlier related acts such as the Star Chamber Decrees of 1586 and 1637, the Ordinances of 1643 and 1647 and the Licensing Act of 1662 (which expired in 1694)
 See http://www.bailii.org/ew/cases/EWHC/QB/2007/2375.html for full judgement
 See http://www.canlii.org/en/ca/fca/doc/2005/2005fca193/2005fca193.html
Update: After the problem with Slideshare I noticed there was a typo on one of the original slides which I have now corrected (Slide 7. Now reads CDA s230, instead of CDA s236)